Constitutionalism, Legal Reform, and the Economic Development of Palestinian Women

• Author: Adrien Katherine Wing
• Position: Bessie Dutton Murray Distinguished Professor of Law, University of Iowa College of Law. A.B. Princeton 1978, M.A. UCLA 1
• Pages: 102-163

Page 102

I Introduction

In discussions of economic development around the world, the plight of women is often forgotten or marginalized. Yet, "women hold up [more than] half the sky in the words of an old Chinese proverb,"¹ both literally and figuratively. They are the numerical majority in almost all countries.²While their participation in the public sphere of the paid workforce outside the home may or may not constitute half of the revenues generated in their nation, their unpaid labor in the private sphere of the household as babysitters, cooks, cleaners, organizers, sex providers, teachers, nurses, laundresses, chauffeurs, etc., available twenty-four hours a day, every day of the year, is phenomenal. Such a superwoman would surely be worth more than $100,000 per year if compensated. Of course, the nurturing, love, and self-sacrifice that go into these tasks in most cases are priceless. To adequately harvest this unsung and undervalued potential, the legal regime on the international, national, and local levels must evolve significantly and demarginalize³ all aspects of women's economic development. Page 103

The purpose of this Article is to discuss the current status of one resilient group of women-Palestinians. Their economic and social development has been hindered by disparate treatment in all facets of their lives from both internal and external factors involving the intertwining of customary practices and religious norms as well as the continuing brutal Israeli occupation. Their basic human rights are violated on a daily basis. While international media and political efforts may focus on the violence between Israel and Palestine, the violence against Palestinian women has been continuously neglected. One day, when Palestine becomes an independent nation, its future political and economic success will depend in part on the degree to which it can include women in all aspects of society. The legal regime must assist rather than impede that process, and this Article offers a few proposals toward achieving that end.

The electoral victory of the Islamic fundamentalist group Hamas in the January 25, 2006 legislative elections will undoubtedly cause major changes in the status of Palestinian women.⁴ However, because that electoral victory occurred after the drafting of this Article, an in-depth discussion of those possible changes is beyond the scope of this Article.

Part II of this Article describes the current situation of the Palestinian women. Part II.A analyzes the negative effects that customary law and traditions that are prevalent in Palestinian society have on Palestinian women. Part II.B demonstrates the impact of Islamic law (Shari'a) on the women. Part II.C examines the direct and indirect effects of the Israeli occupation on Palestinian women. Finally, Part II.D concludes that the combination of internal violence, resulting from custom and religion, and external violence, resulting from the Israeli occupation, causes "spirit injuries" to Palestinian women, which makes it almost impossible for them to flourish in their current circumstances.

Part III focuses on the Basic Law of Palestine, theoretically in effect, and the Draft Constitution, which is to take effect when Palestine officially joins the community of independent states. Part III.A discusses the pre-Basic Law history of documents that address gender equality, including the Declaration of Independence and the very progressive Women's Charter of 1994. Part III.B examines and compares the various provisions of the Basic Law and the Draft Constitution as they relate to gender equality and the development of Palestinian women. Part III.C addresses the discrepancies between the reality of Palestinian society and the ideals expressed in the Draft Constitution and the Basic Law. Page 104

Part IV discusses various proposals to improve the status of Palestinian women. Part IV.A describes ongoing local and international projects designed to assist Palestinian women's economic development. The rest of Part IV examines curbing the high fertility rates, improving the employment and education of Palestinian women, and implementing legal reforms.

II Status of Palestinian Women

Custom and religion both endorse disparate treatment on the basis of gender.⁵ Thus, these "deeply rooted customary and religious traditions" present a serious obstacle to the adoption of reforms that will foster the development of the Palestinian women.⁶ On top of the "internal violence" resulting from custom and religion, the Israeli occupation, or "external violence," is also a significant barrier to the improvement of the status of Palestinian women. This Part addresses the effects of custom, religion, and the occupation and demonstrates how they lead up to severe spirit injuries among Palestinian women.

A Custom and Tradition

This Subpart describes the customary law and traditions in effect in Palestinian society. It analyzes the effects of custom and tradition on Palestinian women, which result in the disparate and discriminatory treatment of women in Palestine.

Customary law in Palestine is known as the legal tradition urf (that which is known).⁷ Disputes falling outside of the civil or religious court system are handled according to urf.⁸ This dispute resolution process is "anti-democratic," since younger people and women, among others, are not represented.⁹ Customary law may be followed in more rural areas or in less-educated families, as well as in highly-educated families.¹⁰Customary law affects women in the following major areas: family law, education, honor killings, and domestic violence. This Subpart addresses the problematic effects of customary law on Palestinian women in each of these areas. Page 105

Custom affects family law by creating a patriarchal society in the private sphere.¹¹ Women's duties are ideally "nurturers and repositories of family honor."¹² According to custom, even adult women cannot live independently.¹³ Custom requires that a woman live with her husband or her father's family.¹⁴ Women should be very conservatively attired, such as by wearing the hijab (headscarf), and should be primarily involved in nurturing their children and family in the private sphere.¹⁵ The conservative attire and behavior help protect the woman's sexuality, which is the cause of fitna (disorder).¹⁶ Marriage should occur without any dating or socialization with the opposite sex.¹⁷ It is also customary for women to get married at a very young age,¹⁸ which compromises many important development opportunities, like education and employment.¹⁹ A bride price known as mahr, which is based on the education and family background of the woman, must be paid by the man to the fiance.²⁰ Embarrassment or worse can result from failure to prove virginity on the night of the wedding.²¹

Under customary law, Palestinian men may marry multiple wives, which has been limited to four under Islamic law.²² Even though polygamy is not widely practiced in Palestine,²³ the ongoing legality can have many negative effects on women. Although each wife should theoretically be treated equally under Shari'a, in reality, the subsequent wives may be favored "with respect to economic resources, social support, and attention."²⁴ Furthermore, the threat of polygamy restricts Page 106 the development of women, since women may hesitate to disagree with their husbands for fear of their husbands marrying a new wife.²⁵

Women are expected to bear a male child, "ideally within a year after the wedding," which increases their status in the family.²⁶ In contrast, custom looks down upon the birth of a female child.²⁷ After the birth of a male son, the mother is known as Um (mother of) the name of her oldest son, meaning that her identity becomes defined by the relationship with her son rather than by her own personal independence.²⁸ Finally, Palestinian men have the right of unilateral divorce (talaq) with relatively little restriction.²⁹ Thus, custom in the private sphere dictates the dominance of men and the restriction of women to a traditional lifestyle, limiting women's opportunities for development.

Under customary practices, education for girls may be limited³⁰ since the society does not deem education necessary for women, who are mainly responsible for unpaid child care and household chores. As one woman acknowledged, "'if a family is unable to educate all the children, they will choose the man because he will be the breadwinner and the head of a household.'"³¹ This view overlooks the importance of education even in the absence of substantial employment opportunities for Palestinian women. Educated women can...